Family Violence Intervention Orders

What is a family violence intervention order?

A family violence intervention order is a court order that protects victims who are affected by an act of family violence. The person the intervention order will protect is called the affected family member. The person the intervention order is made against is called the respondent.

What is family violence?

The Family Violence Protection Act 2008 (Victoria) (“The Act”) provides that family violence occurs when a person engages in abusive behaviour towards a family member. It involves behaviour that controls or dominates a person and causes them to fear for their own safety or wellbeing or that of another person.

Under the Act, behaviour constituting family violence includes:

  • physical or sexual abuse;
  • emotional or psychological abuse;
  • economic abuse;
  • threats;
  • coercion; and
  • any other behaviour that controls or dominates a family member.

Family violence also includes behaviour that exposes a child to any of the behaviours outlined above.

Some examples of family violence are slapping, hitting, punching, sexual assault, verbal threats, derogatory taunts, harassments, withholding necessary financial support, and deliberately isolating someone from their friends and family.

Who is a family member?

Under the Act, family members are:

  • spouses, de facto or domestic partners – whether there is a sexual relationship or not;
  • parents and children, including children of an intimate partner;
  • relatives by birth, marriage or adoption; and
  • persons treated as family – such as guardians or carers.

Who can apply for a family violence intervention order?

An application for a family violence intervention order may be made by the following persons:

  • a police officer;
  • an affected family member;
  • if the affected family member is an adult, any other person with the consent of the affected family member;
  • if the affected family member is a child, the parent of the child, or any other person with the written consent of a parent of the child, or with leave of the court;
  • if the affected family member has a guardian, the guardian or any other person, with the leave of the court.

Furthermore, a child who is an affected family member, may make an application provided they are 14 years or older and have leave of the court.

Interim orders

The court may make an interim order if a person has applied to the court for a family violence intervention order and the court is satisfied that an interim order is necessary, on the balance of probabilities, to ensure:

  • the safety of the affected family member; or
  • to preserve any property of the affected family member; or
  • to protect an affected family member who is a child who has been subjected to family violence committed by the respondent.

The court may also make an interim order if the parties to the proceedings have consented to, or do not oppose, the making of an interim order.

Granting of family violence protection order

The court has the power and discretion to make a final order if the court is satisfied on the balance of probabilities, that the respondent has committed family violence against the affected family member and is likely to continue to do so or do so again.

While an intervention order is technically a civil remedy and not a criminal charge, if a person breaches an intervention order, the offender may face criminal charges involving serious repercussions.

Get legal advice

If you are a victim of family violence or an application for an intervention order has been made against you, it is important you obtain legal advice to help you understand your legal rights and obligations.

Please contact our family law or litigation departments if you would like to discuss your particular circumstances on 9870 9870.

Bitcoin, Hidden Investments and Family Law

Since its advent in 2009, Bitcoin has provided an alternative currency that is difficult to trace and unregulated by banks or government bodies. Cryptocurrencies provide a new challenge to family law with major concerns raised by lawyers in relation to disclosure obligations.

The advent of cryptocurrencies brings about similar challenges to cash, which is difficult to locate unless you know where to look. The virtual dimension of such currencies only tends to exacerbate the issue. Consider the online ‘wallet’ (like a bank account) for Bitcoin users who have public ‘keys’ (to receive funds) and private ‘keys’ (passwords needed to transfer funds). These keys do not hold or disclose any personal information about the holder of the wallet, let alone where it is stored or may be accessed.

Family Law Proceedings and Virtual Assets

Parties to family law proceedings are obliged to provide full and frank disclosure of their financial affairs in the Federal Circuit Court (Regulation 24.03) and in the Family Court (Rule 13.04). Thus, evading proper disclosure of virtual currencies is clearly being in breach of the disclosure obligations.

This is not just a question of ethics. The family courts have power to dismiss a person’s case, order costs against that person or imprison them for contempt of court if disclosure is held not to have been made. Even if virtual assets cannot be located, evidence indicating that assets are being siphoned off can be used to make an adverse inference against the offending party, with orders made to adjust the property settlement accordingly.

Parties that suspect their former spouse of hiding virtual assets may seek an Anton Piller Order which involves ordering the seizure and search of computers or other electronic devices in an attempt to locate the virtual assets. This order should be sought in conjunction with a freezing order to prevent the other party from electronically moving their assets elsewhere. A subpoena may also be filed against a host platform service or a business that the other party has invested in to obtain further information. Such actions need to be balanced by the size of the asset pool, the costs involved and the chances of recovery.

How can Hutchinson Legal help?

If you or someone you know is going through a separation, we strongly encourage you to consult a family lawyer sooner rather than later. For further information, please contact Joshua Davis of our family law team for expert advice and assistance.

Parenthood, Sperm Donation and When Things Go Wrong

When things are going well, no one wants to think about what to do when something goes wrong.

This year the High Court will hear an appeal questioning the legal parentage of a child conceived by sperm donation. The case first arose when the birth Mother sought to relocate to New Zealand with the child and her de facto partner without the biological Father’s consent. The Mother has been seeking to relocate since 2014 without success.

In 2006, the Father and the Mother, who had been close friends for 25 years, conceived a child using “informal artificial insemination.” The Father stated that he desired to co-parent the child, although the Mother disagrees, saying that she wanted to raise the child with her new partner, “Margaret”, soon after conception. The Court will need to consider the definition of “parent” and what factors need to be weighed in answering that question.

In recent years, there have been many changes in the law, where a non-biological female partner in a same-sex relationship can be legally recognised as a parent. This has further implications for women in same-sex relationships who can both legally be recognised as parents when a child is conceived through IVF or self-insemination.

In the High Court case, the two children, the oldest being the subject of the appeal, refer to the biological father as “daddy”, the biological mother as “Mummy” and the Mother’s partner as “Margaret”. The child lives with her two Mums and regularly spends time with her father and his male partner. Here, the Family Law Act allows parents and any other persons “concerned with the care, welfare and development of the child” to apply for parenting orders, regardless of whether they are classed as parents or not.

A “pre-conception” or “sperm donor” agreement can be very helpful to set out parties’ intentions for the child and the web of relationships that will ensue before a child is conceived. Even if the Family Law Act requires such an agreement to be set aside pursuant to the “best interests of the child”, it can be used as evidence of the parties’ intentions in the event of future disagreements or litigation. Ideally, such an agreement would be filed with the Court as parenting orders while things are still going well, before something goes wrong.

Practically, people are rarely so proactive in such matters. Considering the implications for your relationship with your child and the potential Child Support liabilities, obtaining legal advice before embarking on such an adventure is highly recommended. If you have a query from this article, the family law team at Hutchinson Legal is willing to assist.

Combustible Cladding

Recent tragedies such as the Lacrosse Docklands fire and the fire at Grenfell Tower in London, the latter of which resulted in the deaths of 72 people, have brought about increased scrutiny of the risks associated with combustible cladding.

The Victorian Government is conducting a Statewide Cladding Audit. This audit involves inspection of apartment buildings to determine if combustible cladding (such as expanded polystyrene or aluminium composite panels with a polyethelene core) was used in its construction.

Apartment buildings or hotels of three or more storeys, or hospitals, schools and aged care facilities of two or more storeys, that were built after March 1997, will be inspected as part of the audit.

The assessment can result in the Council requiring the owners of the building to take immediate steps to make the building safer. This can include installing smoke alarms, removing ignition sources such as barbeques and clearing fire exits.

The Council can also issue a Building Order requiring replacement of the combustible cladding with a safer material.

To assist with meeting the cost of these works, which can be substantial, building owners can apply for a Cladding Rectification Agreement. This is a three-way arrangement between owners, lenders and the Council to fund the works and will be paid by owners as a charge on the Council rates notice.

If you currently own an apartment that may be affected by the audit, you may wish to ask your Owners Corporation manager if they know what cladding is used on the building and if an audit is planned in the near future.

If you are intending to purchase an apartment, the Victorian Building Authority has a checklist on their website of the recommend steps to take before purchasing: http://www.vba.vic.gov.au/cladding.

Banking Royal Commission

Has a bank, or finance company, or superannuation fund cost you money or denied your claim?

Do you want to get your money back or have your claim reinstated?

If you answered yes to either of these two questions please contact Hutchinson Legal on 9870 9870 or email us at office@hutchinsonlegal.com.au to find out how we may be able to help you.

Many banks, finance companies and superannuation funds have acted improperly according to the Banking Royal Commission which released its findings Monday 4 February 2019.

Examples of behaviour that may entitle you to receive compensation include:

  • being sold inappropriate credit card insurance
  • being charged for services you didn’t receive
  • being sold life insurance by a bank or superannuation fund
  • having a bank or finance company act on false documents (e.g. car loan documents)
  • having insurance claims rejected

You may also know of someone who has suffered a loss or who has a deceased spouse who was charged for services after they had died.

Hutchinson Legal are reviewing options for class actions against banks and finance companies that have acted improperly and caused losses to Australians. Please contact us on 9870 9870 or email us at office@hutchinsonlegal.com.au to find out if you may be able to recover such losses or receive compensation.

Note: The official name of Banking Royal Commission is ‘The Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry’, and is also known as the Hayne Royal Commission.

Aged Home Care – Better care or larger bureaucracy

The new Commonwealth funded Aged Care Quality and Safety Commission commenced operation on 1 January 2019.

The Commission combines the Australian Aged Care Quality Agency and the Aged Care Complaints Commissioner. The new Commission will accredit, assess and monitor aged care services subsidised by the Australian Government. It will resolve complaints about these services and aims to build confidence and trust in aged care, give greater voice to consumer complaints, support aged care providers to comply with quality standards, and promote best practice service provision.

Madelaine Pelser leads the Eldercare Legal Department at Hutchinson Legal in Ringwood, and is concerned there may be a bureaucratic overreaction caused by the publicity given to rogue operators in the aged care sector. Some operators are already providing excellent and respectful care and Madelaine has expressed concern that operators may be required to divert resources from providing the care our elderly need, to filling in paperwork and documenting every small and sometimes inconsequential event that occurs in an Aged Care Facility.

Care for our elderly should not be compromised, whether it be by a rogue operator, or by overzealous public servants. It is to be hoped the new Commission focuses their efforts on the operators who are either unable or unwilling to lift their standards and provide the care our elderly deserve.

A Royal Commission into aged care was established on 8 October 2018 and the Commissioners are required to provide an interim report by 31 October 2019, and a final report by 30 April 2020. Grant Hutchinson, serving as director of an Aged Care Facility, notes the Royal Commission will be placing webcasts of their hearings online (https://agedcare.royalcommission.gov.au/hearings/Pages/Webcast.aspx) and has watched the opening of the Royal Commission held on 18 January 2019. He also expects to personally attend the hearings conducted by the Royal Commission into Aged Care Quality and Safety in Melbourne.

Have you registered your business name?

Since 2012, if you operate your business under a different name than your own name or your company’s name, you must have a registered business name.

Previous to this date, trading names were able to be used. These are being phased out, with trading names no longer being valid from 2023.

A business name must be registered with ASIC and must be renewed every one year or every three years depending on the period of registration you have chosen.

It is an offence to operate a business under a different name without a registered business name. This can attract a penalty of up to $6,300.

There may also be difficulties involved in selling your business. In order for the sale to be GST-free as a going concern, you must transfer all things necessary for a purchaser to continue the business. A trading name cannot be transferred. You will have to register a business name before transferring it to the purchaser, which can delay settlement. If a business name is not transferred to the purchaser, the sale may attract GST.

If you purchased or started your business prior to 2012, it is a good idea to check whether you hold a registered business name using the Federal Government’s ABN Lookup website.

If you are selling or buying a business or require advice regarding any business legal issues including commercial agreements or business structuring, please contact our Commercial Law team on 03 9870 9870.

We mourn the passing of Mr Henry S. Dixon

On the morning of Friday 19 October, the mentor and grandfather of Hutchinson Legal died.

We express our sympathy and condolences to the family of Henry Summerville Dixon and to the many clients who knew and loved him.

A Service of Thanksgiving and internment of ashes will be held on Saturday 3 November 2018 at 11.30am at St Michael and All Angels Anglican Church (1331 Mount Dandenong Tourist Rd, Kalorama) with Vicar Andrew Smith, followed by a light lunch at CWA Farndons Hall (Farndons Rd, Mt Dandenong).

A tribute to Mr Dixon was published in the 31 October 2018 edition of Maroondah Leader. Please click on the following link if you would like to read it: http://leader.smedia.com.au/maroondah/

Below are some thoughts and memories from those who knew Mr Dixon:

“…he was always great to us. They were funny times, but at all times his advice was second to none.” – M. Webster

“Remembering with much happiness mixed with sadness at his passing my boss and mentor for over 20 years. An icon of Ringwood and Mt Dandenong during his lifetime. May he rest in peace with those twinkling eyes.” – S. Halliwell (formerly Davies)

 

Examining a sector in need of care – Aged Care Royal Commission

The Australian Government has announced the appointment of Commissioners to conduct a Royal Commission to examine and make findings relevant to the aged care sector.

The Commissioners, former WA Supreme Court Judge Justice Joseph McGrath and former Medicare CEO Lynelle Briggs AO, have been instructed to focus on a range of matters including the following:

  1. Quality of aged care services and how well they meet the needs of the aged;
  2. Extent of substandard care or abuse;
  3. Causes of system-wide failures; and
  4. Future challenges and opportunities in light of changing demographics and preferences.

The Royal Commission can require relevant persons and organisations to give evidence, which will include aged care management and staff. The Royal Commission may also ask members of the public with relevant stories to come forward.

The Commissioners have been requested to provide an interim report by 31 October 2019.

The final report is due by 30 April 2020 and is expected to include recommendations for reform of the aged care sector.

Parenting after separation – What is the best approach?

There are a number of different terms for separated parents raising children. Co-parenting and parallel parenting are a couple of them.

According to Wikipedia, co-parenting commonly refers to the shared parental responsibility of two, separated or divorced parents and has its roots in a 1989 United Nations convention to establish basic rights for children around the world. It was agreed at the convention that children had a right to know both parents, even if those parents separated.

Effective co-parenting arrangements usually involve parents working cooperatively together to make decisions for the child. Parents in a cooperative co-parenting situation aim to communicate with each other and constructively work to achieve the best outcomes for the child in areas such as schooling, common discipline standards, holidays and other aspects of life. Often these arrangements can continue to improve over time after the pain of a relationship breakdown begins to heal.

Cooperative co-parenting works when both parties believe that the other parent holds an equal role and value in raising the children. These parents may not always agree on all parenting decisions, but there is a mutual respect for each other’s role and neither parent allows anger or resentment to impact their parenting decisions. The goal is always what is best for the children and how to make it work smoothly for everyone. Parents that are not able to successfully co-parent often find themselves in a regular state of conflict with the other parent.

Conflictual co-parenting occurs when one or both people do not believe the other person has an equal right to parent. They may have a complete lack of respect for the other parent, they may interfere with the ability of the other parent to play an equal role or undermine the other parent’s relationship with the children. It can be best for those in a conflictual co-parenting style to follow parallel parenting.

Ideally, it would be great if all couples took the approach of co-parenting, but in the real world, things often do not work out ideally, especially if family violence is involved.

Parallel parenting is an arrangement in which divorced parents are able to parent by means of disengaging from each other, and having limited direct contact, in situations where they have demonstrated that they are unable to communicate with each other in a respectful manner.

These parents find it difficult to speak with each other without becoming engulfed in antagonistic and non-productive conversations. Yet they both want to have an on-going relationship with their children.

In other words, parallel parenting allows parents to remain disengaged with one another while they remain close to their children. Because of the continuing high level of conflict between them, these parents need to have less direct contact with each other. Parallel parenting is necessary when the ability to compromise is gone.

Parallel parenting can often be the better answer for those relationships where family violence was/is involved.

Parallel Parenting can be an advantage in these ways: –

  • It reduces the number of conflicts with your ex-partner and reduces the chances of family violence towards you;
  • It allows you to create your own household rules and parenting style;
  • It gives you the ability to create a new family structure in your own home with the children
  • It reduces anxiety in yourself, the children and other members of your household

While parents can worry about the inconsistencies between homes, children are able to quickly learn the differences in one house from another and it is typically easier for them compared to having parents in high levels of conflict.

For parallel parenting to work, the following rules should be followed: –

  • Everything needs to be spelled out in a court-order parenting plan, including drop-offs, holidays, time-sharing, medical, religious and educational decisions, everything;
  • The parents spend little time together and agree to communicate with each other only through written form;
  • The parent who is with the child is the parent in charge and only in the case of medical or another type of emergency, is required to alert the other parent of anything;
  • All communication MUST be non-personal and business-tone in nature and only relate to the information relevant to the children;
  • No personal information is shared with the other parent;
  • To minimise conflict, no assumptions are made and all schedules are shared via a calendar;
  • The children are not to give communication to the other parent on behalf of the other.

The idea of fairness and reasonability needs to be let go. You will not be able to have a rational conversation with someone that holds high levels of anger. You will not be able to show them that you are right or genuine. You need to remember that co-parenting didn’t work or isn’t going to work for a reason and you cannot reason with someone if they, or both of you, are consumed with your personal feelings of anger, resentment and bitterness.

Sometimes the path of least resistance is the correct one. Reducing communication and conflict is a way to protect the children and yourself. It is essential to take the approach that suits your family.